Angele Chandler v Bed Bath N' Table
[2020] FWCFB 6714
•21 DECEMBER 2020
| [2020] FWCFB 6714 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Angele Chandler
v
Bed Bath N’ Table
(C2020/6633)
VICE PRESIDENT HATCHER | SYDNEY, 21 DECEMBER 2020 |
Appeal against decision [2020] FWC 3706 of Commissioner Lee at Melbourne on 13 August 2020 in matter number U2019/2368.
Introduction
[1] Ms Angele Chandler has lodged an appeal, for which permission to appeal is required, against a decision issued by Commissioner Lee on 13 August 2020 (decision). 1 In the decision, the Commissioner determined that Ms Chandler’s dismissal by the respondent, Bed Bath N’ Table (BBNT), was unfair. In the assessment of remedy, the Commissioner concluded that reinstatement was inappropriate in the circumstances and issued directions for the filing of material addressing the question of compensation.
[2] Ms Chandler contends that the Commissioner erred in finding that reinstatement is not an appropriate remedy. Ms Chandler submits that the decision manifests an injustice and says that it is in the public interest to grant permission to appeal.
[3] On the basis of our view that Ms Chandler’s application for permission to appeal may be adequately determined on the basis of written submissions, and with the consent of the parties, the appeal has been conducted without holding a hearing pursuant to s 607(1) of the Fair Work Act 2009 (Cth) (FW Act).
[4] For the reasons that follow, we decline to grant permission to appeal.
Background
[5] Ms Chandler commenced employment as a casual employee of BBNT on 25 June 2018 and worked her last shift on 28 February 2019. Until about January 2019, Ms Chandler performed approximately 20 to 25 hours of work per week at BBNT’s Essendon store as a sales assistant. It is not in contest that BBNT subsequently reduced Ms Chandler’s working hours to one shift per week in January 2019.
[6] Ms Chandler’s employment was terminated on 1 March 2019 for misconduct for (1) failing to comply with BBNT’s policy with respect to notification of absences, (2) engaging in disrespectful, insubordinate and intimidating conduct during a meeting on 26 February 2019 with the Regional Manager, Ms Katirena Faill, and (3) sending an email to Ms Faill on 27 February 2019, which is said to constitute a continuation of Ms Chandler’s disrespectful conduct during the meeting of the previous day.
[7] On 4 March 2019, Ms Chandler made an application to the Commission pursuant to s 394 of the FW Act for an unfair dismissal remedy. BBNT objected to the application on the basis that Ms Chandler was not a person protected from unfair dismissal. BBNT contended that Ms Chandler was not regularly and systematically employed and had no reasonable expectation of continuing employment as a casual employee.
[8] A decision upholding BBNT’s jurisdictional objection 2 was quashed by a Full Bench on 23 January 2020.3 Upon redetermination of the question of whether Ms Chandler is a person protected from unfair dismissal, the Full Bench concluded that (1) Ms Chandler’s employment as a casual employee was on a regular and systematic basis within the meaning of s 384(2)(a)(i) of the FW Act, and (2) during her period of service with BBNT as a casual employee, Ms Chandler had a reasonable expectation of continuing employment on a regular and systematic basis pursuant to s 384(2)(a)(ii).4 The application was subsequently allocated to the Commissioner for determination on the merits.
The decision
[9] In the decision, the Commissioner comprehensively set out the evidence and submissions concerning the reduction in Ms Chandler’s hours of work, before turning to consider the three instances of misconduct for which Ms Chandler was dismissed.
[10] In respect of Ms Chandler’s failure to comply with BBNT’s policy with respect to notification of absences, the Commissioner set out the relevant aspects of the BBNT Australian Employee Handbook. In finding that this matter did not constitute a valid reason for the dismissal, the Commissioner concluded as follows:
“[67] It is clear that the Respondent’s policy provided that absences were to be notified by phone call and that sending texts was not acceptable. Therefore, the Applicant in texting her impending absence was not conforming with the policy of the store. Notwithstanding that, the Applicant communicated her absence in a manner she traditionally used and had not been admonished for in the past. The evidence of Ms Faill was that she left a voicemail that asked for a call back from the Applicant to confirm her unavailability. However, the evidence adduced at the determinative conference suggested that the Applicant was unaware of the voicemail at the time it was left. Moreover, it appears uncertain at what later time, or even if, the Applicant became aware that a voicemail was left by Ms Faill. I accept the Applicant’s evidence that at the relevant time she was unaware of the specific directions of Ms Faill to contact her. In considering all of the circumstances, I am not satisfied that the first reason for the dismissal is a sound and defensible, and therefore valid, reason for the dismissal.”
(citations omitted)
[11] The Commissioner turned to consider the second reason for the dismissal, being Ms Chandler’s conduct during the meeting with Ms Faill on 26 February 2019. An audio recording of the meeting was tendered in evidence before the Commission. The Commissioner noted that Ms Chandler did not inform Ms Faill that she recorded the meeting. 5 More is said about this later in this decision.
[12] After setting out the evidence of Ms Chandler and Ms Faill, the Commissioner concluded that he preferred the evidence of Ms Chandler for two reasons. Firstly, the audio recording did not support Ms Faill’s characterisation of Ms Chandler’s conduct during the meeting. 6 While the conversation was “robust”, the Commissioner did not accept that Ms Chandler’s conduct towards Ms Faill during the meeting was aggressive, disrespectful or involved a threat to Ms Faill’s health and safety as contended.7 Secondly, the Commissioner did not accept that Ms Faill felt intimidated and uncomfortable by Ms Chandler’s behaviour during the meeting.8 The Commissioner stated that there was no evidence of Ms Faill counselling Ms Chandler about her behaviour during the meeting.9 Further, Ms Faill did not raise any concerns with Ms Chandler’s behaviour in an email sent to her the following day.10 The Commissioner concluded by making the following findings in respect of the second reason for the dismissal:
“[79] ...Having regard to the evidence, I am not satisfied that the Applicant is guilty of the alleged misconduct set out in the second reason. I am not satisfied that this is a valid reason for dismissal.”
[13] The third reason for the dismissal related to the email Ms Chandler sent to Ms Faill on 27 February 2019. The Commissioner set out in full a series of emails sent between Ms Chandler and Ms Faill. The email trail commences with Ms Chandler sending two emails to Ms Faill following the 26 February 2019 meeting. The emails raised concerns with the unscheduled nature of the meeting, sought clarification from Ms Faill as to the relevant policy concerning the notification of absences from the workplace, and requested a copy of BBNT’s practices concerning dispute resolution. The Commissioner concluded that Ms Chandler was responding to the request of Ms Faill, who asked the Applicant to send her concerns in writing. 11
[14] The relevant email in dispute was sent by Ms Chandler to Ms Faill at 10:16am the following day, 27 February 2019. The email opened with the following statement, “I would like to thank you once again for bringing to my attention the error of my ways with regards to a procedure that as a majority of employees in store has failed to meet.” The email outlined Ms Chandler’s concerns that she had been treated unfairly by the reduction in her working hours. In respect of this email, the Commissioner found as follows:
“[87] …I agree the first sentence of the email from the Applicant to Ms Faill on 27 February 2019 at 10.16am is rather sarcastic and to that extent disrespectful. Beyond that, it is not apparent that the email has a “tone” that is “appalling”, as was submitted by the Respondent’s representative. In any case, Ms Faill herself did not describe the email as “appalling”. She described the email as having a “disrespectful” tone. She described the 26 February 2019 email from the Applicant as having a tone that was “intimidatory”.
[88] In my view, the emails are a forthright expression of the concerns of the Applicant, about her allocation of hours. Other than the sarcasm of the first sentence of the email of 27 February 2019, they are, objectively viewed, neither intimidatory nor disrespectful. At the time of responding to the email of 27 February 2019, Ms Faill did not indicate any concern whatsoever with the email that was sent to her. Having considered the evidence, I am not satisfied that the emails of 26 and 27 February 2019 that the Applicant sent to Ms Faill constituted misconduct. They do not constitute a sound and defensible reason for the dismissal and their sending is not a valid reason for the dismissal.”
[15] As earlier noted, Ms Chandler covertly recorded her meeting with Ms Faill on 26 February 2019. The Commissioner next turned to consider this issue in the decision noting that, depending upon the circumstances, it may constitute a valid reason for Ms Chandler’s dismissal. 12
[16] While the Commissioner rejected Ms Chandler’s evidence that she recorded the meeting because she was fearful, the Commissioner stated that the conduct was out of character for Ms Chandler. 13 The Commissioner said that it was not Ms Chandler’s intent to damage the relationship with BBNT, notwithstanding that it was “apparent” that the covert recording had had this damaging effect.14
[17] The Commissioner concluded that Ms Chandler’s conduct in covertly recording her discussion with Ms Faill on 26 February 2019 amounted to a valid reason for her dismissal, although it was not the reason relied upon by BBNT who was unaware of the recording until the filing of evidentiary material in Ms Chandler’s unfair dismissal application. 15 The Commissioner concluded that Ms Chandler’s conduct was inappropriate and damaging to a relationship of trust and confidence with BBNT.16
[18] The Commissioner next turned to consider the process embarked upon by BBNT to effect the dismissal, which he considered to be “riddled with flaws.” 17 While observing that BBNT was entitled to reject Ms Chandler’s preferred support person because the person was deemed to have been “an active member of the disciplinary investigation”, the Commissioner found the decision to proceed with the meeting without taking into account Ms Chandler’s request for more time was “unreasonable.”18 Further, Ms Chandler had been advised by BBNT that the repercussion of not attending the meeting was suspension until the meeting could take place. Notwithstanding this, BBNT moved to terminate Ms Chandler’s employment “within hours of her non-attendance at the meeting.”19 Further again, the Commissioner found that BBNT’s National Human Resources Manager, Ms Yvette Dowlan, misled Ms Chandler by stating that 24 hours’ notice of the meeting is all that is required to convene a disciplinary meeting under the FW Act, but refused to provide Ms Chandler with any basis in support of that statement upon request by Ms Chandler.20
[19] Against this background, the Commissioner turned to consider whether the dismissal was harsh, unjust or unreasonable by reference to s 387 of the FW Act. As to s 387(a), the Commissioner concluded that he was not satisfied that the three reasons given by BBNT to Ms Chandler for the dismissal were valid reasons. 21 However, the covert recording of the meeting on 26 February 2019 was deemed a valid reason and weighed against a finding that the dismissal was unfair.22
[20] Having regard to the finding made in respect of s 387(a), the Commissioner concluded that there was no opportunity for BBNT to notify Ms Chandler of the valid reason pursuant to s 387(b), as the secret recording was not then known to it. 23 For the same reason, BBNT did not provide Ms Chandler with an opportunity to respond to the valid reason for the purpose of s 387(c).24 The Commissioner concluded that these matters weighed in favour of a finding of unfairness.25
[21] As to s 387(d), the Commissioner found that in the absence of delaying the disciplinary meeting, BBNT’s conduct in insisting that Ms Chandler find an alternative support person had the effect of depriving Ms Chandler of the ability to have a support person. 26
[22] The matters dealt with in respect of ss 387(e)-(g) were found by the Commissioner to be either irrelevant or neutral considerations. 27 As they are not matters relevant to the appeal before us, no more need be said about them.
[23] In relation to s 387(h) of the FW Act, the Commissioner summarised Ms Chandler’s personal circumstances, including her financial situation and difficulties securing new employment. 28 The Commissioner rejected BBNT’s contention that Ms Chandler demonstrated “a high level of antipathy” to BBNT.29
[24] The Commissioner concluded as follows:
“[150] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of the Applicant was unreasonable because she was not notified of the reason and did not have an opportunity to respond to the reason for dismissal and was effectively denied the opportunity for a support person. It was harsh because of the significant impact the dismissal has had on her in circumstances where she had entered into a significant financial commitment to buy property and has had considerable difficulty finding alternative employment.
Conclusion on merits
[151] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act.”
[25] The Commissioner turned to consider the issue of remedy. He commenced his analysis by summarising s 390(3) of the FW Act and posing the question, “is reinstatement of the Applicant inappropriate?” The Commissioner set out Ms Chandler’s submissions in support of a reinstatement order, specifically: Ms Chandler’s position that she loved her role; termination of her employment was not warranted for the reasons given by BBNT; her age and the impact of COVID-19 may impair her capacity to secure a job suitable to her skillset noting that it took her 18 months to secure her role at BBNT; and she was in significant financial distress. 30
[26] The Commissioner next set out BBNT’s submissions in support of its position that reinstatement was inappropriate. 31 BBNT contended that:
(1) reinstatement would be futile given that BBNT has very limited work available at the Essendon store in which Ms Chandler worked such that Ms Chandler “would not be able to be offered any work and the Applicant considers herself to only be employed at the Essendon store”;
(2) reinstatement would be futile because “there is a likelihood” that Ms Chandler’s conduct in secretly recording the 26 February 2019 meeting will result in disciplinary action and the termination of her employment; and
(3) there has been a fundamental loss of trust and confidence in the employment relationship.
[27] After setting out the observations of the Full Bench in Anderson v Thiess Pty Ltd, 32 which summarised the factors that may be relevant in the consideration of the appropriateness of reinstatement in Nguyen v Vietnamese Community in Australia,33 the Commissioner concluded as follows:
“[157] …I accept the evidence of the Respondent that there is very limited work at the Essendon store such that the Applicant would be able to be offered little or perhaps no work at all. Moreover, I accept that given the discovered conduct of the Applicant recording the conversations, there is likelihood that on return to work there would be disciplinary action which would likely result in her termination.
[158] I also accept that in the circumstances, trust and confidence have been lost as a result of the secret recording of the conversation.
[159] Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.”
[28] The Commissioner said that directions would issue for the filing of supplementary material necessary for determining the question of whether an order for payment of compensation was appropriate in all the circumstances. 34
Appeal grounds and submissions
[29] By her notice of appeal, Ms Chandler contends that she is appealing the “remedy decision.” 35 Ms Chandler therefore seeks to challenge the Commissioner’s finding that reinstatement is not an appropriate remedy. Having regard to the matters raised in Ms Chandler’s notice of appeal and submissions,36 we understand that Ms Chandler contends that the Commissioner erred and did not properly exercise his discretion by:
1. denying Ms Chandler procedural fairness by refusing to order reinstatement (appeal ground one); 37
2. finding that reinstatement would be futile because of a likelihood that Ms Chandler would be dismissed by reason of her conduct in secretly recording the 26 February 2019 meeting (appeal ground two); 38
3. making various factual errors (appeal ground three); 39 and
4. failing to take into account material considerations (appeal ground four). 40
[30] By appeal ground one, Ms Chandler contends that the Commissioner erred by refusing to order reinstatement in circumstances where, in summary, (1) the Commissioner ought not have relied upon the secret recording to find a valid reason for the dismissal, (2) the Commissioner denied Ms Chandler the opportunity to respond to the findings made regarding the secret recording before making a final decision concerning reinstatement, and (3) Ms Chandler was not given the opportunity to ask a question of (“cross examine”) BBNT’s representative in the proceedings while herself being cross-examined. 41
[31] The second ground of appeal contends that the Commissioner misdirected himself by concluding at [157] of the decision that reinstatement was inappropriate. The Commissioner is said to have erred in finding that “there is a likelihood” that Ms Chandler’s conduct in secretly recording the 26 February 2019 meeting will result in disciplinary action and the termination of her employment if Ms Chandler is reinstated. 42
[32] Ms Chandler’s third ground of appeal relies upon various factual errors said to have been made in the decision, including in respect of the following matters:
1. the basis for the meeting on 26 February 2019; 43
2. whether BBNT knew of the existence of the secret recording prior to the filing of its evidentiary material in the proceeding; 44
3. the Commissioner’s conclusion that Ms Chandler was fearful of Ms Faill prior to the meeting occurring; 45
4. Ms Chandler’s position that she was feeling unwell on 26 February 2019; 46 and
5. the hours of work available at the Essendon store at the time the decision was issued. 47
[33] Appeal ground four contends that the Commissioner failed to take into account material considerations in the decision not to order reinstatement. In summary, Ms Chandler contends that the Commissioner erred by not considering:
1. Ms Chandler’s personal and financial position; 48
2. the circumstances for the making of the secret recording; 49
3. that there was no evidence to support BBNT’s claim that the employment relationship was irreparable, that there was a loss of trust and confidence such that Ms Chandler could not be reinstated, or that reinstatement would damage BBNT’s reputation; 50
4. the significant deficiencies in the processes adopted by BBNT to effect the dismissal; 51 and
5. that Ms Chandler has a good working relationship with her colleagues and customers, and an excellent performance and conduct record. 52
[34] In her notice of appeal, Ms Chandler submits that the grant of permission to appeal would be in the public interest because the decision manifests an injustice and the appeal raises important questions about the construction and application of aspects of the FW Act. 53
[35] BBNT submits, in summary, that permission to appeal ought not be granted. BBNT says that the appeal, which relates to a discretionary decision concerning the appropriateness of reinstatement, does not raise any matters sufficient to attract the public interest.
Consideration
[36] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.54 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[37] This appeal is one to which s 400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[38] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 55Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.56 A Full Bench of the Commission in GlaxoSmithKline Australia Pty Ltd v Makin identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 57
[39] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.58 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.59
[40] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 60 However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[41] As the appeal concerns the Commissioner’s decision not to reinstate Ms Chandler to her casual position with BBNT, it is appropriate that we make some preliminary observations about the nature of the statutory power exercised by the Commissioner as it relates to remedy.
[42] By s 390(1) of the FW Act, the Commission is afforded a broad discretionary power to award the remedy of reinstatement in circumstances where a finding has been made that a person (1) is protected from unfair dismissal, and (2) has been unfairly dismissed. Section 390(3) provides that the Commission must not order the payment of compensation to a person unless the Commission is satisfied that reinstatement is “inappropriate.” The assessment of whether something is appropriate or otherwise necessarily involves the exercise of a broad evaluative judgment. 61
[43] Consistent with the object stated in s 381(1)(c) of the FW Act, reinstatement is regarded to be the primary remedy under Part 3-2. This is because reinstatement must be considered and rejected as inappropriate before consideration may be given to the alternative remedy of monetary compensation. However, it does not follow that a reinstatement order is an automatic consequence of a finding that a dismissal was unfair. The relevant question is whether reinstatement is appropriate in the particular case. 62
[44] Having regard to these matters, it is necessary for Ms Chandler to demonstrate that in the Commissioner’s exercise of a broad and discretionary power, the Commissioner erred by declining to make a reinstatement order. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 63 The High Court in House v The King identified two categories of error that may be made in this type of decision-making process. The first is where a decision maker “acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration.” The second type of error arises where “it may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”64
[45] We now turn to consider Ms Chandler’s grounds of appeal.
Appeal ground one
[46] By appeal ground one, Ms Chandler contends that the Commissioner denied her procedural fairness in the course of him refusing to order reinstatement. In summary, Ms Chandler submits that the Commissioner erred by:
1. relying upon the secret recording to conclude that there was a valid reason for the dismissal, as this contradicted the purpose and value of the material; 65
2. failing to pose any questions concerning the circumstances leading to Ms Chandler’s decision to make the secret recording and thereby did not afford Ms Chandler an opportunity to address those circumstances; 66
3. failing to advise Ms Chandler during the determinative conference of his views as to the secret recording; 67 and
4. not requiring BBNT’s representative to answer a question posed by Ms Chandler regarding the secret recording. 68
[47] Each of Ms Chandler’s contentions as to a denial of procedural fairness are rejected for the following reasons.
[48] Ms Chandler’s contention that the Commissioner’s reliance upon the secret recording to ground a valid reason for the dismissal “contradicted the purpose and value of the material” cannot be sustained. Ms Chandler tendered the recording and sought that the Commission rely upon it in the assessment of her application. 69 BBNT, having become aware of the existence of the recording as a result of Ms Chandler placing it into evidence, sought to rely upon it in its written closing submissions as constituting a further justification for the dismissal.70 Ms Chandler was advised by the Commissioner that if she wished to reply to anything contained in BBNT’s closing submissions, she could do so by way of oral submissions at a further short hearing on request,71 but Ms Chandler did not avail herself of this opportunity.
[49] Further, it is apparent from the material before the Commissioner that Ms Chandler was given the opportunity to present her case concerning the circumstances leading to her decision to make the secret recording. In her written submissions, Ms Chandler said that she decided to record the conversation because it was “scary to say the least and did not make sense.” 72 Questions were put to Ms Chandler during cross examination as to the rationale for recording the discussion and Ms Chandler’s responses are set out in various extracts from the transcript at [90] to [92] of the decision.
[50] In circumstances where BBNT relied upon the recording as a ground for dismissal in its case and thus enlivened the issue, it was not necessary for the Commissioner to independently provide advice to Ms Chandler that he was considering taking it into account in his consideration under s 387(a) of the FW Act. Accordingly, we consider that there is no substance to Ms Chandler’s contention that she was denied procedural fairness in the manner contended.
[51] Finally, no appealable error is disclosed by reason of the fact that BBNT’s representative declined to answer Ms Chandler’s question during cross examination. The question she posed was whether the disciplinary meeting would have gone any differently if BBNT knew the meeting was being recorded by Ms Chandler. 73 The relevant purpose of the cross examination was to obtain further evidence from Ms Chandler. The subjective view of BBNT’s representative was of doubtful relevance. The proper course would have been for Ms Chandler to put her question to Ms Faill, which she did not do. In any event, a review of the transcript discloses that at no stage during the proceedings did Ms Chandler seek that the Commissioner direct BBNT’s representative to answer the question. Nor did Ms Chandler seek to “cross examine” the representative, as is now contended. Accordingly, there is no basis for Ms Chandler’s submission that the Commissioner erred by not ruling on matters he was not asked to.
Appeal ground three
[52] It is convenient to next consider Ms Chandler’s third ground of appeal. This relates to the various factual errors said to have been made in the decision. For the following reasons, no arguable case of appealable error is made out in relation to this ground of appeal.
[53] Ms Chandler’s first contention of factual error concerns the basis for the meeting on 26 February 2019. Ms Chandler submits that the Commissioner did not take into account Ms Faill’s evidence that she had “no reason” to speak with Ms Chandler on 26 February 2019. Ms Chandler’s contention that the Commissioner did not take this material into account is plainly wrong. At [68] and [69] of the decision, the Commissioner summarised the evidence of both Ms Chandler and Ms Faill concerning the reason for the meeting. In so doing, the Commissioner specifically referred, at [69] of the decision, to those parts of the transcript raised by Ms Chandler as not taken into account. 74 The Commissioner concluded that the evidence disclosed that Ms Chandler and Ms Faill each sought to speak to the other. This conclusion was reasonably open on the evidence.75 Ms Chandler does not in express terms contend that the Commissioner’s finding in this respect was incorrect. No error of fact, let alone a significant error of fact, is disclosed by this finding.
[54] Secondly, Ms Chandler contends that Ms Dowlan was aware following the dismissal that Ms Chandler secretly recorded the meeting on 26 February 2019, but BBNT did not rely upon this as a matter of relevance or significance in its response to the application. 76 We understand Ms Chandler’s position to be that the Commissioner erred in his summation at [128] and [129] of the decision, which state as follows:
“[128] The reason for the termination need not be that which was given by the employer. It can be any reason underpinned by the evidence provided to the Commission. If the employer seeks to rely on a reason for dismissal other than the reason given or relied upon at the time of the dismissal “they will have to contend with the consequences of not giving the employee an opportunity to respond to such reason”.
[129] This is such a case and the employer has to deal with the consequences that there was not an opportunity given to respond. The failure to give an opportunity to respond weighs in favour of a finding the dismissal is unfair.”
(citations omitted)
[55] There is no basis to Ms Chandler’s contention that the Commissioner erred in the manner contended. The Commissioner accurately summarised the position set out by a Full Bench of the Australian Industrial Relations Commission in MM Cables v Zammit 77 that “the Commission is obliged to consider whether there was a valid reason for the termination - that inquiry is not limited to the reason given by the employer for the termination.”78 There was an evidentiary basis for the Commissioner’s conclusion that BBNT was unaware of the recording until it was filed by Ms Chandler in the proceedings, although Ms Chandler contends otherwise.79 Ms Chandler’s contention that Ms Dowlan was aware of the secret recording following the dismissal is, with respect, not the point and does not disclose any error in the decision.
[56] Thirdly, Ms Chandler contends that the Commissioner mischaracterised her evidence and erred in finding that she was fearful of Ms Faill prior to the 26 February 2019 meeting. Ms Chandler submits that her evidence was that she was “fearful of the discussion” and not fearful of Ms Faill. At [90] of the decision, the Commissioner summarises Ms Chandler’s position in the same way Ms Chandler now does before us; “The Applicant’s evidence is that she recorded the conversation with Ms Faill because she was fearful.” Further, at [94] the Commissioner states that, “the audio recording of the discussion does not indicate that the Applicant was fearful.” Further again, the Commissioner concludes at [95] of the decision, “…I do not accept that she was fearful.” It is therefore apparent that the Commissioner did not mischaracterise Ms Chandler’s evidence. In any case, we do not accept that the Commissioner’s references at [93] to [95] and [101] of the decision to Ms Chandler being fearful of Ms Faill disclose an arguable case of appealable error. It was reasonably open on the material for the Commissioner to conclude that Ms Chandler’s evidence also included a fear of Ms Faill. Neither Ms Chandler’s written submissions nor her evidence before the Commission confine her feelings of fear to the discussion itself. Rather, Ms Chandler’s evidence included the following:
1. It “was scary to say the least” that Ms Faill wanted to speak with her. 80
2. “…then the store manager says to you, ‘the regional wants to speak to you.’ Of course you’re going to be scared, fearful.” 81
3. “Well, who’s to say that I wasn’t fearful when I spoke to her the first instance.” 82
4. “…I don’t speak to my store manager or any of my superiors in a manner that I’m so confident that I wouldn’t be scared of them. I don’t know Ms Faill. I don’t work with her on a regular occasion. Just because I had the ability to ring her doesn’t mean that I wasn’t scared to ring her.” 83
[57] This evidence led to the following exchange between Ms Chandler and the representative for BBNT:
“So, Ms Chandler, I’m trying to understand your answer. You’re saying that you’re not fearful of her or you are fearful of her? - Well, at the time when she was speaking to me I was intimidated by her…” 84
[58] Ms Chandler’s contention that the Commissioner mischaracterised her evidence is rejected. The Commissioner made findings that were reasonably open to him on the evidence. No arguable case of appealable error is made out in respect of this matter.
[59] The fourth alleged error is that the Commissioner erred by not considering that Ms Chandler was not feeling well on 26 February 2019. Ms Chandler’s contention that she was unwell on 26 February 2019 appears throughout Ms Chandler’s written submissions, 85 and was restated during the proceedings below including in response to questions from the Commissioner.86 Specific reference is made to Ms Chandler’s ill health at [68] of the decision, where it is stated “the Applicant says that she was concerned and feeling ill,” and further that “she told Ms Lazarevska, the Store Manager, that she was unwell and wanted to go home.” It follows that Ms Chandler’s contention that the Commissioner did not consider that she was feeling unwell cannot be sustained and is rejected.
[60] Ms Chandler’s fifth contention of factual error concerns the Commissioner’s conclusion at [157] of the decision. The Commissioner found that there is “very limited work at the Essendon store” such that there would be little or perhaps no work to be offered to Ms Chandler if she were to be reinstated. Ms Chandler submits that there is no evidence to support this conclusion.
[61] Ms Faill gave evidence that while BBNT’s Essendon store was trading between 11:00am and 3:00pm each day of the week, two management employees were performing the available work. There was no remaining work for casual employees. 87 This evidence was not challenged by Ms Chandler, despite her having the opportunity to do so.88 It follows there was an evidentiary basis for the factual finding made by the Commissioner. The matters now relied upon by Ms Chandler to support her contention of error were not raised before the Commissioner.89 Indeed, some of these matters post-date the decision. We are therefore not satisfied that any arguable case of appealable error in relation to the Commissioner’s finding as to the available work at the Essendon store at the time of the decision has been established.
Appeal ground four
[62] By appeal ground four, Ms Chandler contends that the Commissioner failed to take into account material considerations in the decision not to order reinstatement.
[63] Ms Chandler contends that the Commissioner did not consider her personal and financial circumstances, and that Ms Chandler has a good working relationship with her colleagues and customers. However, these matters were expressly considered by the Commissioner at [150] and [154] of the decision. The Commissioner found that Ms Chandler’s dismissal was harsh “because of the significant impact the dismissal has had on her in circumstances where she had entered into a significant financial commitment to buy property and has had considerable difficulty finding alternative employment.” 90 Further, the Commissioner noted Ms Chandler’s personal circumstances including that Ms Chandler had submitted that she “loved her job, colleagues and customers.”91 Ms Chandler’s contention that the Commissioner did not take these matters into account in his consideration as to the appropriateness of a reinstatement order is not made out.
[64] We reject Ms Chandler’s contention that the Commissioner did not consider the procedural deficiencies in BBNT’s process to effect the dismissal as part of the assessment of reinstatement. The Commissioner found that Ms Chandler’s dismissal was unreasonable by reason of the inadequacy in BBNT’s process to afford Ms Chandler procedural fairness. 92 The assessment as to the appropriateness of reinstatement was therefore made against that factual finding.
[65] Further, Ms Chandler submits that the Commissioner did not take into account that there was no evidence to support BBNT’s claims of a loss of trust and confidence. This contention is plainly wrong. The Commissioner concluded at [158] of the decision that there was a loss of trust and confidence in the employment relationship “as a result of the secret recording of the conversation.” The secret recording was in evidence before the Commission and was found to constitute a valid reason for dismissal. It was reasonably open to the Commissioner, having directly heard the evidence, to conclude that it had the effect of rendering the employment relationship unworkable. It is apparent from the decision that the Commissioner considered that it would not be possible to restore a productive and viable employment relationship because the secret recording provided a sound and rational basis for BBNT’s stated loss of trust and confidence in Ms Chandler. The matters raised by Ms Chandler do not disclose a sufficient basis to disturb this conclusion.
[66] Finally, Ms Chandler contends that the Commissioner erred by not considering the circumstances for the making of the secret recording. In summary, it is contended that the Commissioner did not consider that Ms Chandler’s decision to record the 26 February 2019 meeting was informed by (1) Ms Chandler’s need to protect her interests and employment from the conduct of her managers, 93 (2) Ms Chandler’s view that she was treated differently to other casual employees,94 and (3) the fact that Ms Chandler had no knowledge of the meeting with no time to prepare.95
[67] Ms Chandler’s evidence before the Commissioner was that she made the recording because she was fearful of the discussion with Ms Faill. This was addressed by the Commissioner in the decision. It follows that there is no basis to Ms Chandler’s position that the Commissioner erred by not considering the circumstances summarised at (1), (2) and (3) above as these matters were not raised, in terms, by Ms Chandler. Further, Ms Chandler’s submission that the Commissioner ought to have taken into account that the recording was made to protect Ms Chandler’s interests from the “inconsistency of Ms Faill’s witness statement” is rejected. 96 Ms Faill’s statement was filed well after the 26 February 2019 meeting in response to Ms Chandler’s unfair dismissal application. Accordingly, Ms Chandler’s contention is without merit.
[68] For the reasons stated, appeal ground four is rejected.
Appeal ground two
[69] We return now to Ms Chandler’s second ground of appeal, which concerns the Commissioner’s conclusion at [157] of the decision that if Ms Chandler were to be reinstated, there is a “likelihood” that she would be dismissed by reason of her conduct in secretly recording the 26 February 2019 meeting.
[70] Ms Chandler contends the Commissioner’s conclusion was erroneous because the Commissioner (1) did not consider whether making the secret recording affected her capacity to perform the role of Casual Sales Assistant, 97 (2) did not consider BBNT’s failure to notify Ms Chandler of the secret recording in the assessment of the likelihood of future termination,98 and (3) relied upon BBNT’s belief or assumed that there would be a likelihood of disciplinary action and a subsequent termination in circumstances, when all the facts had not been considered.99
[71] We accept that there is conceptual difficulty in the Commissioner’s reliance upon the likelihood that, if reinstated, Ms Chandler would be dismissed for misconduct a second time based upon the secret recording in circumstances where BBNT had submitted and the Commissioner had earlier accepted that the secret recording constituted a valid reason for the dismissal the subject of the application. It does not seem to us that the same matter could reasonably constitute a valid reason for two dismissals of the same person. In Nguyen v Vietnamese Community in Australia, 100the Full Bench gave consideration to a range of circumstances in which the remedy of reinstatement may be inappropriate. One such circumstance includes where the reinstatement of an employee “…would almost certainly lead to a further termination of the employee’s employment because the employer has since discovered that the employee engaged in an act of serious misconduct which was only discovered after the employee’s termination…”.101 However, the footnote to that passage in Nguyen states that “Such discovery might also be relied upon by the employer as a valid reason for the employee’s dismissal which is the subject of an unfair dismissal remedy application.” We understand the passage from Nguyen, read together with the footnote, to identify alternative approaches that might be taken in an unfair dismissal application in relation to evidence of misconduct acquired post-dismissal: the employer might rely upon the evidence to justify the dismissal, or the employer might reserve its right to rely upon that evidence to dismiss again if the employee is reinstated. If the latter approach is taken, that might constitute a sound reason to conclude that reinstatement is not an appropriate remedy for an unfair dismissal. However, the Commissioner’s decision appears to impermissibly embrace both alternatives.
[72] However, the potential error we have identified does not cause us to conclude that the grant of permission to appeal would be in the public interest. The Commissioner relied upon two other independent matters to conclude that reinstatement would not be appropriate. Specifically, the Commissioner first accepted that there was very limited work at the Essendon store such that Ms Chandler could be offered little or perhaps no work at all if reinstated. 102 This consideration obviously had particular force given the extraordinary circumstances faced by the retail industry in the face of the COVID-19 pandemic, and rendered reinstatement a wholly or largely illusory remedy. Second, the Commissioner accepted there had been a loss of trust and confidence in Ms Chandler on the part of BBNT by reason of the secret recording.103 These matters appear to us to constitute sound and reasonably available reasons for the refusal of the reinstatement remedy that would not be disturbed even if permission to appeal were to be granted in respect of appeal ground two. The grant of permission to appeal would therefore be inutile.
Conclusion and disposition
[73] For the above reasons and having regard to the conclusions reached, we are not satisfied that it is in the public interest to grant permission to appeal. Accordingly, permission to appeal is refused.
VICE PRESIDENT
Determined on the basis of written submissions.
Printed by authority of the Commonwealth Government Printer
<PR725392>
1 [2020] FWC 3706
2 [2019] FWC 6448
3 [2020] FWCFB 306, 295 IR 1
4 Ibid at [18]-[20]
5 [2020] FWC 3706 at [73]
6 Ibid at [74]-[75]
7 Ibid at [75]
8 Ibid at [76]
9 Ibid
10 Ibid at [77]
11 Ibid at [86]
12 Ibid at [89]
13 Ibid at [95]-[96]
14 Ibid at [96]
15 Ibid at [101]
16 Ibid
17 Ibid at [111]
18 Ibid
19 Ibid
20 Ibid
21 Ibid at [120]
22 Ibid
23 Ibid at [121]-[123]
24 Ibid at [124]-[129]
25 Ibid at [129]
26 Ibid at [135]-[136]
27 Ibid at [137]-[142]
28 Ibid at [143]-[145]
29 Ibid at [146]
30 Ibid at [153]-[154]
31 Ibid at [155]
32 [2015] FWCFB 478
33 Nguyen v Vietnamese Community in Australia[2014] FWCFB 7198
34 [2020] FWC 3706 at [162]
35 Notice of appeal dated 28 August 2020 (notice of appeal) at 1.2
36 Submissions filed by Ms Chandler on 2 October 2020 (Chandler submissions) and reply submissions filed by Ms Chandler on 23 October 2020(Chandler reply submissions)
37 Notice of appeal 2.1 at [1] and [6]
38 Ibid 2.1 at [2], [7] and [8]
39 Ibid 2.1 at [3]-[5], [9] and p 5 [5] and [6(b), (c), (e)]
40 Chandler submissions at [1(d)]
41 Chandler submissions at [7]-[9], [14], [17], [39], [42], [48] and [53]; Chandler reply submissions at [7]
42 Notice of appeal 2.1 at [6] and [7]; Chandler submissions at [13], [23] and [36]; Chandler reply submissions at [32]
43 Chandler submissions at [26] and [27]
44 Notice of appeal 2.1 at [5]; Chandler submissions at [10] and [11]; Chandler reply submissions at [28]
45 Chandler submissions at [41] and [42]; Chandler reply submissions at [9]
46 Chandler submissions at [15]; Chandler reply submissions at [17]
47 Chandler submissions at [47]; Chandler reply submissions at [35]-[39] and [41]-[47]
48 Chandler submissions at [16]
49 Chandler submissions at [18]-[21], [29], [31], [33]-[35], [38], [43], [44], [53], [54] and [60]; Chandler reply submissions at [3], [8], [14], [16], [22], [24] and [25]
50 Chandler submissions at [25], [32], [37] and [50]; Chandler reply submissions at [50]
51 Chandler submissions at [12], [24] and [46]
52 Ibid at [49]
53 Ibid at [2]-[4]
54 This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
55 [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43]
56 O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
57 [2010] FWAFB 5343, 197 IR 266 at [27]
58 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
59 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
60 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
61 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, 203 CLR 194, 99 IR 309 at [19]; Michael Hatwell v Esso Australia Pty Ltd[2019] FWCFB 2895 at [24]
62 Regional Express Holdings Limited trading as REX Airlines v Richards[2010] FWAFB 8753, 206 IR 17 at [23]-[24]; Colson v Barwon Health[2014] FWCFB 1949 at [30]-[31]; Nguyen v Vietnamese Community in Australia [2014] FWCFB 7198 at [10] and [35]
63 House v The King [1936] HCA 40, 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ
64 Ibid at 505
65 Chandler submissions at [7] and [25]
66 Ibid at [8], [9], [14], [17] and [39]
67 Ibid at [39]
68 Chandler submissions at [42]; Transcript at PNs 350-351
69 Transcript at PN 179
70 Closing submissions dated 21 May 2020, at [6]-[9]
71 Transcript at PNs 1022-1024
72 Court Book p.84 at [7]
73 Transcript at PNs 350-351
74 Ibid at PNs 814-815
75 See Court Book p.84 at [6]
76 Notice of appeal 2.1 at [5] and p.5 [5]
77 MM Cables (A Division of Metal Manufacturers Limited) v Zammit [2000] AIRC 61, PR S8106
78 Ibid at [42]
79 Chandler submissions at [10] and [11]; BBNT final submissions filed 21 May 2020 at [17(b)]; see also Transcript at PN 347
80 Appeal Book p.84 at [7]
81 Transcript at PNs 301-302; [2020] FWC 3706 at [90]
82 Transcript at PN 311; [2020] FWC 3706 at [91]
83 Transcript at PN 313; [2020] FWC 3706 at [91]
84 Transcript at PN 314; [2020] FWC 3706 at [91]
85 For instance, see Appeal Book p.84 at [1] and [3] and p.86 at [30]
86 Transcript at PNs 344, 346 and 581
87 Transcript at PNs 775-778
88 Ibid at PNs 836-866
89 Chandler submissions at [47]
90 [2020] FWC 3706 at [150]
91 Ibid at [154]
92 Ibid at [149]
93 Chandler submissions at [18]-[21], [35], [38], [43], [44], [53] and [54]
94 Ibid at [31]
95 Ibid at [60]
96 Chandler reply submissions at [22]
97 Notice of appeal 2.1 at [8]; Chandler submissions at [13] and [23]
98 Notice of appeal 2.1 at [7]
99 Chandler submissions at [36]; Chandler reply submissions at [32]
100 Nguyen v Vietnamese Community in Australia[2014] FWCFB 7198
101 Ibid at [17]
102 [2020] FWC 3706 at [157]
103 Ibid at [157]-[158]
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